feise a mans lands into their hands for the Kings use also he said that this appears by the 11. E. 4. and 2. Eliz. Dyer if a man comes and saith that he surrenders his office and a Memorandum is recorded thereof but the Patent is not delivered up it seems this is not sufficient to make a surrender so on the other side if the Patentee make a deed purporting asmuch yet it appeareth by 19. of Eliz. Dyer if the deed be not inrolled it is a good surrender and he agreed to that which hath been objected against him that although that the Iury did not finde in what Court the restoring of the Patent was yet it ought to be intended to be made in Chancery but he said that the Iury did not finde any time when the surrender was made and that is a thing material to be found as it appears in Kemps Case and Mack Williams Case before Thirdly an actual surrender being in the King new letters Patents urged to be made shall be intended to be part of the consideration which moved the King to a new grant and he vouched 18. Eliz. Dyer 352 where a lease was recited which needed not and in facto the said lease was a void lease in Law And therefore the new lease made was also void à fortiori here where an actual surrender is recited to be made Fourthly he said that the sole reason in Harris and Wings case was that the first lease ought to have been recited for if the King makes a lease and after makes another lease of the same land to the same lessee the first lease is in being at the time of the acceptance of the new lease as appears by Fulmerstons case in Plowden and therefore if in such case there be not a good recital of the lease in being the second lease is not good and so the acceptance of it makes no surrender of the former lease and he said that the recital of the Queen in the principal Case is a shewing of a former lease destroyed and not in being and then no actual surrender being made the said former lease contrary to this recital is in being still and so the recital is false and consequently the second lease is a void lease and so this worketh no surrender in Law of the old lease and so he concluded the fourth point that here is no surrender in Law and he held that if there had been a good surrender in Law yet this had not made the Patent good and where it was objected that a consideration executed though valuable being false avoyds not a Patent he said it appears in 6. Ed. 2. tit pardon Brook 79. that a consideration of service in the Kings Patent ought to be alledged to have been performed nevertheless it appears in Sir Thomas Worths case in Plowden that such a particular service being alledged in the Patent to be executed needs not an averment that it was performed for the Patent is good although such consideration be false but he said that in this Case the precedent surrender is the material consideration and therefore there ought not to be any material variance in the form of the consideration and so is the difference betwixt this Case and Worths Case and therefore if the King make a grant to A. in consideration that he had released by deed inrolled and he had released by fine here is a failing of the consideration that he had released by deed inrolled when as he had released by fine and so the grant is void and he said that as it appears by the judgement given in Welshes Case cited in Altonwoods Case that no equitie ought to be observed in the Kings grant against his express words so here no equitie ought to be observed against the King otherwise then his plain words import and therefore here his words import and intend an actual surrender precedent which ought not to be satisfied with a surrender subsequent and after upon the motion of the Earl of Salisbury Lord Treasurer of England this Case was referred to the Lord Privy Seal and the Lord of Worcester who awarded to Sir Robert Johnson 200 l. per annum during his life and the life of his wife for all his interest but the Earl of Salisbury Lord Treasurer seemed that the matter in Law was against Sir Robert Johnson although that equitie was for him to which opinion Tanfield chief Baron also inclined in regard there was not here any surrender in the Case but an extinguishment only Hill 4. Jac. in the Exchequer IT was moved by one whether the Kings Patentee of Pirats goods seising some goods of Pirats should pay custome for them or not and it was holden by the Barons that he should pay none for in asmuch as they are goods given by Law unto the King no reason that he should have custome for his own goods The Case of Queens Colledge in Oxford of Minosmer UPon a special verdict the Iury found that Queens Colledge in Oxford was incorporated by the name of Provost and Schollers of the Hall of the Queens Colledge of Oxford and they were seised in fee of an advowson whereof the place is parcel the Church being void the Provost and Schollers aforesaid did by the name of Provost of Queens Colledge in the Universitie of Oxford and the fellows and Scholers of the same present one A. to the same avoydance who after admission c. made a lease for years yet to come to the Defendant which was confirmed by the Patron and Ordinary and that afterwards A. died and the Plautiff was presented admitted instituted and inducted and the Defendant entring claiming his lease the Plantiff had brought this Action Harris Junior Serjeant for the Plantiff seemed that the presentation of the lessor of the Defendant was not by the true name of the Patrons and so the lease void and therefore the Defendant a Trespasser as to the Plantiff and he said that the name of a Corporation is not like to a mans surname which groweth by nature but is like to a name of Baptisme which groweth by politie and therefore ought to be truly observed in their grants and presentations as appears by 35. H. 6. fo 5. and it is there said if a man be baptized by the name of Posthumus if this addition of Posthumus be omitted this abates the writ but yet he agreed that variance of the name of a Corporation in some manner of Surplusage hindreth not as in Plowden Crofts and Howels Case and it was in Fisher and Boys Case ruled that Custos for gardianus was not any material variance but he said that in Mich. 29. 30. Eliz. in Banco Regis in Merton Colledge Case where the title was that the said Colledge was incorporated by the name of the Colledge of Scholers of the house of Merton Colledge and in a lease by them this word Scholers was omitted and holden void for that cause and so it was betwixt one Wingate
the said resolution and he said that the case concerning parcel of the land contained in S. the Deed come in question in Parliament in the 43. Eliz. and it was then commanded that the Deed should be inrolled and also he compared it to a case put in Shelleys Case that the heir shall have land as by discent from his father although that the conveyance be not inrolled in the life of the father also he said that the Queen dieth not as to her body politick to the third point he said that the confirmation need not to be inrolled for it passeth nothing and is but a bare assent and therefore differeth from the case of Patron and Ordinary and of a disseissee for the disseisee hath right to grant end the Patron and Ordinary have interest in R. but Bishops are seised in their own right and therefore their lease wants the approbation only of the Dean and Chapter and he vouched Cook lib. 3. the Dean and Chapter of Norwiches Case and the writ of Sine Assensu Capituli in the Register proveth it for the tit confirmation pl. 30. observes and Littleton in the end of his chap. of discontinuance saith that a parson may charge the Gleab by the assent of the Patron and Ordinary and the opinion of Brook in the case of the 33. of H. 8. tit confirmation pl. 30. agreeth to this opinion and so are some opinions in the 7. H 4. fo 15. 16. and he said that this point was adjudged accordingly in the first of Ma. but he had not the record thereof and therefore he would not insist upon it and he vouched 1. and 2. of Ma. Dyer fo 106. and Cook lib 6. fo 15. Hodges Case that the acceptance of the Patron is good enough to make a confirmation to the fourth point he said that the confirmation was good notwithstanding it be before the inrolment of the lease for the lease shall stay his operation until all the Ceremonies be used for the perfection of the estate and he vouched Littleton fo 122. and 6. E. 6. Dyer fo 69. where a parson made a lease to commence after his death the Patron and Ordinary in the life of the parson confirmed it and this is good and he vouched also Anne Maiowes Case Cook lib. 1. where the father confirmed the sons grant when he had but a possibilitie and yet good and he vouched Dyer 2. 3. Eliz. fo 194. where a grant was incertain and the inception was before the confirmation after makes it good and therefore he said if disseissor and disseissee bargain land although it be but a confirmation of the disseisee which may be well enough without inrolment of the Deed by a bare delivery yet this shall hinder the operation until the inrolment of the Deed which should pass the estate from the disseisor and by Cook lib. 5. Fitz. Case it appeareth that one part of the assurance shall stay his operation until another part hath his perfection and therefore he concluded that here the confirmation in judgement of Law should stay his operation until the lease be inrolled which passed the estate see the argument of Serjeant Nichols to the contrary and also the argument of Thomas Crew in Easter Term and Trin. 7. Jac. Pasch 7. Jac. in the Exchequer Catesbies Case Pasch 7. Jac. in the Exchequer TAnfield chief Baron said that in the year 31. Eliz it was adjudged in Goar and Peers Case if Tenant for life infeoffe A. and his heirs to the use of the feoffee and his heirs during the life of the feoffor that this is a forfeiture because these words during the life of the feoffor shall be but to the use limited and he put the case which Serjeant Nichols put at the Bar of the Lady Catesby which was that a man suffered a recovery to the use of William Catesby and Anne his wife and of the longer liver of them and of the Executors of William for forty years if one Elizabeth Catesby should so long live William Catesby dies and the reversion came to the King by forfeiture and he pretended that Elizabeth Catesby being dead the estate is also determined in regard that these words if Elizabeth shall so long live refer to all the estate but Curia avisari vult It was said by the chief Baron that if a man plead a deed in writing and the other partie do not pray Oyer the same Term he shall not have Oyer in another Term in the Common Pleas but in the Kings Bench Oyer shall be granted in another Term. It was found by office that Elizabeth Bowes was convicted of Recusancy in 35. Eliz. and that a lease for years was made unto her in the year 36. Eliz. in trust and that she had conveyed this lease over according to the trust and a question was demanded if the King shall have this term or not for her Recusancy and it seemed that he shall because she is not capable nor lyable of any trust and therefore the conveyance made by the Recusant was as if it had been without any compulsion by reason of the trust If a Coppiholder of the Kings Mannor pretendeth prescription for a Modus decimandi against the Parson the right of Tithes shall be tried in the Exchequer and a prohibition was granted to the Ecclesiastical Court in this Case Owen Ratliff was lessee for years of the King rendring rent and he assigned his Term to Sir Thomas Chichley in trust for payment of the debts of the said Owen Ratliff and after the Debts were paid Chichley resigned it but in the interim between the assignment and the resignment divers rents incurred to the King and the Barons agreed that these arretages in Law may be levied upon the land of Chichley notwithstanding the trust but because the Court was informed that the Executors of Ratliff had assets and continued farmer of the farm at that time they compelled him to pay it and being present in Court they imprisoned him untill payment made and allowed him his remedy by English Bill against Chichley and that by the agreement Chichley was to have paid the rents to the King The Earl of Cumberlands Case IT was found by diem clausit extremum after the death of G. Eearl of Cumberland that King E. 2. gave to the Lord Clifford inter alia the Mannor of Skipton in Craven to him and to the heirs of his body and found further the discent in a direct line until the time of H. 6. and that the first Donee and all others to whom it descended were seised prout lex postulat without determining any estate in certain in the Donee and they found that H. 6. by sufficient conveyance concessit Revertionem nec non manerium de Skipton in Craven to Thomas Lord Clifford to whom the estate given by E. 2. was descended and his heirs by force whereof the said Thomas was seised prout lex postulat and found the discent to the
Earl of C. now dead and found that by fine and recovery he conveyed an estate in this land to the use of his brother that now is Earl of C. in tail the remainder over to c. and died having a daughter now Countess of Dorset who moved by Dodderidge the Kings Serjeant in the Court of wards that this office was insufficient for by the pretence of the said Countess the first estate given to the Cliffords by E. 2. was a general tail and then the fine levied and the recovery suffered by the last Earl her father is no Bar but that it may discend to this Countess as his heir in tail and therefore Serjeant Dodderidge said to the Lord Treasurer then present in Court that if this should be allowed that Iurors may finde generally a grant made and shew no quallitie of the conveyance nor any place or time but if this were a grant of reversion or of a possession he said that many men by such offices should have their lands given away whereunto they had no means for uncertainties to take a Traverse and as to insufficiency of this office he said that the insufficiency therein consisted first in matter Secondly in form for the insufficiency of the matter is two fold First because that the office findes only that King H. 6. by sufficient conveyance not limited any manner of conveyances nor any qualitie thereof which ought to be shewed and it is material because we may give a different answer thereunto for against letters Patents we may plead one thing and against an other conveyance we may plead another thing and so our answer differeth according to the qualitie of the conveyance Secondly it is insuffient in matter because it is found that H. 6. granted the possession and that he granted the reversion nec non manerium which is repugnant for if the King grant a reversion then no possession passeth and if he pass a possession then no reversion passeth and therefore it is repuguant to say that he granted Reversionem nec non manerium which implieth a possession also he said that his exceptions to the office as to the Mannor of it are two-fold First the office doth finde any time of the grant made by H. 6. and this is material for the grants upon Record take their force from the time of their date as appears by Ludfords Case in Plowdens Commentaries and he said that at this time the case is material to be exprest in respect that H. 6. was for part of his reign deposed and after restored and it might be in the time that he was deposed by Edward the fourth but unto that it was answered by the attorney of the wards that the office found that H. 6. granted c. that it was not in the time when he was deposed the second insufficiency in the Mannor is because it is not found at what place H. 6. made the said grant and that this is material to be found by office he vouched 36. H. 6.32 and he said that it is very requisite that in such offices all circumstances ought to be expressed in as ample certaintie as in a declaration so that the partie prejudiced by the office may know where to search for the conveyance but the Attorney general said that there needs no such express finding of all circumstances by a Iury as it ought to be in pleading for it shall be taken by intendment in divers cases but yet he said that it appears by 1. Eliz. Dyer 174. it is a good plea to say that A. granted a reversion c. to the King without shewing how much more in office which is the Act of the Iurors and therefore Serjeant Harris cited the Book of 14 15. H. 7.22 where an office found an estate tail without mention of the Donor and yet good and the Attorney general said also that it appears by the finding of the Iury in Fulwoods Case Cook lib. 4. that the Iury need not precisely to finde all circumstances for if there be convenient certaintie the residue shall be supplied by intendment as it is there said and the Attorney said that whereas it hath been objected that the issue is evil because it is found that H. 6. granted the reversion and also the Mannor and Castle aforesaid and doth not limit incertaintie that the King granted a reversion or that he granted a Mannor in possession to that he said that it is clear that the King may after recital of a particular estate grant the reversion nec non terras sive manerium and then be the land in lease or be the lease void in Law yet the land shall pass and this is his course alwayes in granting the Kings lands to others and therefore the Iury did well to finde the truth without determining what should pass for admit that there were no estate precedent in being yet by this finding it appears plainly that the Mannor and Castle should pass by the grant in the time of H. 6. to which the Lord Cook agreed for Law and so he said it was his use when he was Attorney general to which also the Lord Treasurer Flemming chief Justice and Tanfield chief Baron agreed and the Attorney general said that his use was if A. had a lease from the King of B. acre which by effluction is to determine in Anno. 1612. and the said A. doubting that this lease was not good in Law prayed to have a new lease that in this case he recited the first lease in the new letters Patents and thereby granted the land for twentie years from c. which shall be in Anno 1612. or from the sooner determination of the former lease and the Iudges allowed it to be good and Dodderidge Serjeant said that after the difference taken between the pleading and the finding of the Iury it seemed to him that there is a great difference between them but after the finding of the Iury upon an office as our case is and a pleading there is no difference for the office is a thing to which an answer may be made but a verdict given upon issue joyned between the parties hath no other proceeding but to judgement immediately and therefore such a verdict shall be divers times supplied by the construction of the Iudges but a verdict upon an office ought to be as certain as an indictment because the partie may Traverse and to prove that upon such uncertain offices there is no remedy by Traverse he vouched the case of 3. H. 4 5. upon an insufficient office after the outlawry of A. and no time is found of the outlawry and he observed out of the said book that the partie outed by the said insufficient office had no remedy by Traverse but was compelled to make a motion to the Court and after this case for difficultie was referred to the two chief Iustices and the chief Baron to consider upon who the said Term at Serjeants Inne appointed it to be
Dyer the Lord Dacres surrendred a patent of an office granted to him before Sir Nicholas Hare Master of the Rolls but the surrender was not recorded nor the patent Cancelled nor a Vacat entred upon the inrolment this is void and shall not be aided now after the death of Sir Nicholas Hare per optimam opinionem in Kemps case Dyer 195. but it will be said that it appears not there that the surrender was made in Chancery and therefore differs from our case but see 19. Eliz. Dyer 355. which is direct in the point where an exchange of land was with E. 6. by deed acknowledged to be inrolled c. but not inrolled it cannot after nor be inrolled nor vest any interest in the Queen either as heir or Purchasor so hereby it appears that before inrolment an estate vests not in the King and he said that he had heard Popham late chief Iustice say that the opinion of the Iudges was that in this case nothing vests in the King until inrolment and for that there was a private Act made in 39. Eliz. to relieve this particular case so the Memorandum makes the record and not the delivery of the patent to be cancelled but the opinion of Davers in 37. H. 6.10 may be objected against me where he saith that if a man make a feofment to the King and deliver the deed in the Exchequer or at the Kings Coffers it is good without inrolment which by the Court is intended for goods and not to a feofment made to the King for this is only the opinion of Davers which I denie to be law and also all this may be admitted for law and yet prove nothing for when the partie surrenders to the King and delivers the deed to be inrolled so that he had done all which in him is to pass the land to the King then it may aptly be said in common speech that the right of the land is in the King because he of right ought to have it after inrolment although he had not the propertie of the land before the Deed be inrolled then if nothing vest in the Queen in the principal case before the patent made in 37. Eliz. the words subsequent in the patent will not help the matter viz. quam quidem sursum redditionem acceptamus per praesentes because the King had taken nothing before and the recital in the patent concludes not the Queen it hath been said that the not making of a Memorandum is the fault of the Clark and this shall not prejudice the partie in so great a mischief but I answer that the same mischief will insue where a man sells land by indenture and delivers it to the Clark to be inrolled and he inrols it not within 6. moneths nothing shall pass by the sale yet this is only the fáult of the Clark but in this case he may have his action upon the case against the Clark if so it be that he had paid all his fees the fame law in the principal case but admitting that yet great mischief will insue if it be so that the estate shall pass to the King before inrolment for then the estate and interest shall be tried by the Countrie and not by the record and then also in what place should a man search to finde the Kings estate and perhaps for want of knowledge thereof every grant of the King will be avoided and this would be a great mischief to the subjects but admitting that this should be a good surrender without a Memorandum or Vacat yet this is not shewed in this case for it appears not here that his intent was to surrender it for although he deliver up his Letters patents yet his estate remaines and then the consideration of the patent in 37. Eliz. being of a surrender of the first patent and also of a surrender of the estate if the estate be not surrendred as well as the patent the consideration is for that false and then the patent is void and to pâ—ove that the estate remains although that the patent be surrendred it appears by Fisher 12. H. 7.12 where Tenant in tail of the gift of the King loses his letters patents his heir is not at a mischief for he may have a Constat and this shall be good in evidence but he cannot plead it and this appears by the Preamble of the Statute of 13. Eliz. cap. 6. Dean and Chapter Lease land this shall be by Deed and in this case although that the lessee redeliver his deed it is no surrender of the estate but he shall not plead it without shewing a Deed of the assent of the Chapter but he shall give it in evidence and good because he had once a Dâ—ed thereof as it appears by 32. E. 3. Monstrance of Deeds and it appears by 32. H. 8. Patents Br. 97. that if the Kings Patentee lose his letters Patents he shall have a Constat and by 32. H. 8. surender Br. 51. and 35. H. 8. tail that if the King give in tail and the Donee surrender his Patent the tail thereby is not extinct so although letters Patents are necessary for pleading of the Kings Grant yet they are not requisite for the essence and continuance of the estate also it is found that the said Patents were restored to be cancelled per mandatum Domini Seymor it is not found what manner of authoritie the Lord S. gave nor found to whom the letters Patents were delivered nor at what time and peradventure they were delivered after the second Patent made and then is the second Patent false because then there was no surrender and this is one of the reasons put it Kemps case 3. Eliz. 195. The second point admitting that there is no actual surrender if notwithstanding that the Patent of 37. Eliz. be good and as to that I say if this Patent be good it is because the Queen had recited the particular estate and therefore is not to her damage or because the second Patent is a surrender in law of the first and the rather because it appears to be the intention of the Queen that the acceptance should be a surrender by these words quam quidem sursum redditionem acceptamus per praesentes and as to the first reason it seems to me that the Queen recites this as a particular estate determined and not as an estate continuing for by these words modo habens et gaudens it appears that the meaning of the Queen was that the Lord Seymor had not an estate continuing in the intent of the Queen at the time of the making of the second Patent but the Lord Chandos case in Coo. 6. fol. 55. seems to impugne me in this opinion where the King made a gift in tail and afterward by Patent reciting the former Grant and also that the Patentee had delivered up the Patent into the Chancerie to be cancelled by vertue whereof he thought himself to be seised in demeasne as of fee
did grant the lands unto the said Donee in fee in that case it was adjudged that the reversion did pass unto the Donee although the words of the reversion were not contained in the Patent although that the King in that case did think that he granted a possession but the reason of that was that although the Patent was not inrolled yet by law it should have been surrendred unto the King nevertheless because that was the collection of the King and not the suggestion of the partie that the King was seised by vertue c. therefore the collection being false shall not make the Patent void for all there that came of the suggestion of the partie is true but our case is otherwise for here the intention of the King was that he had the land in possession when he had made the grant and in truth he had but a reversion also if the Patent should be good great prejudice would or might ensue to the Queen thereby for put the case that the Queen had annexed a condition to this lease or that she had reserved a greater rent upon it this condition or increasing of the rent was the cause that the Queen had made this grant and that if the second grant should be good and the first not determined that the Grantee may claim his first estate and so defeat the Queen of her rent and of his condition to have benefit of either and this was the reason why the Patent was adjudged void in the case of Barwick Coo. lib. 5. fo 94. because some parcels were not surrendred to the Queen and therefore they were not subject to conditions or rent reserved upon the second Patent and for a second reason he argued that the acceptance of the second Patent is not a surrender in Law of the first Patent because the first Patent is meerly void as it appears in Fulmerston and Stewards case Plowden 107. that the reason why the taking of a second lease shall be a surrender of the former is because both the estates cannot be in one and the same Parson at one and the same time but this reason holds not in our case because no estate passeth by the second Patent in regard it is void and therefore this case may be resembled unto the last case in 23. Eliz. Dyer where a man taking a second benefice incompatible without dispensation doth not make the first benefice void by the Statute against Pluralities because he never was a lawful Parson of the second benefice in respect the never subscribed to the Articles according to 13. Eliz. cap. 12. and in Harries and Wings case the second Patent was void but a third reason was he thought that these words Quam quidem sursum redditionem acceptamus have not aided this Grant for the second Patent is made in consideration of a surrender made by the Patentee and therefore there ought to be a good surrender made by him or otherwise the consideration is false for the King in consideration of a surrender made doth grant lands where in facto there was no surrender as if the King grant black acre in consideration of a surrender of white acre which in facto was not done this grant is void also this appears by these words modo habens et gaudens sursum reddidit et restituit c. that the intention of the Queen was that the Lord Seymor had surrendred before and that he had no estate at this time of the making of the grant for these words modo habens et gaudens ought to be interpreted according to the rules of Grammar and for that in 9. H. 7.16 b. the Court consulted with Grammarians touching the exposition of Latine words and was by them directed and he said that this word modo had divers significations for this signifieth nuper interdum aliquando but most properly it signifieth nuper or interdum modo Paratus eâ—at Codrus erit subito qui modo Craesus erat modo ad hunc diem c. there it signifieth the present Tense or time but in the principal case if modo should signifie the present tense then it would not stand with this word sursum reddidit which is the preter tense but if here it be construed that modo signifieth the present tense this may well stand with sursum reddidit and the meaning of the Queen ought to be taken to be that the Queen was deceived and the Patent void although in the principal case here was a good surrender before the second patent yet until agreement nothing vests in the Queen and therefore if a man pleads a surrender made by the lessee to him in reversion he ought to plead an agreement to this surrender and 13. H. 4. that this is not in him before agreement and entrie and 32. E. 3. Bar 262. that until agreement nothing vests in him it was lately adjudged in the Common Pleas where an incumbent had resigned yet until the ordinary did agree unto it he remained an incumbent still and for that in asmuch as the Queen had not agreed before the second Patent made nothing vesteth in her till then and then she was deceived for she thought that she was in possession thereof at the time of the grant and therefore he concluded that he conceived the Patent was void Brock to the contrary and he divided the case into three points First whether here be an actual surrender found to be made in Law Secondly if the acceptance of the second lease be good or if the Queen reciting the estate and that he had surrendred which the Queen had accepted and that in consideration thereof she made the Grant whether this be made good although there be no actual surrender Thirdly admit that here he no actual surrender in facto whether this grant be aided by the Statute of 43. Eliz. cap. 1. but first before he would enter into his argument he said that he would wash away the Rubs cast in his way to make his way the smoother and first where it hath been said that if the Queen should take by contract or bargain without record that great mischief would insue for by that means the Queens title should be tried by the Countrie and in proof thereof he cited the Lord Latimers case in 12. H. 7.10 11. which he thought to be no authoritie for that purpose for there the opinion of the Court was delivered concerning the shewing forth of Letters Patents but not concerning matter of inrolment also the case was of an estate of inheritance to be conveyed from the King but the case now in question is but for an estate for life which may in law more easily be determined than an estate of inheritance conveyed also the case of 19. Eliz. Dyer 335. cited of the other part proves not this case for first the question was not there whether the King took any thing without inrolment but whether the Deed may be inrolled in the time of another King Secondly if
this be confessed that the King there should take nothing without inrolment yet this is not like to our case for here this is but to merge a particular estate which differs much from the case of conveying of an inheritance also this is confessed if there had been a Memorandum made in the Margent then the surrender had been good and the want thereof is the laches of the Clark and then if it should not be a surrender before the Memorandum made the Clark should make the surrender and not the partie and as to the Book of 37. H. 6. it is not answered for to say that the King hath no right to the thing granted before inrolment but that he hath the propertie that cannot be and to that which hath been objected that there doth not appear any intention of the surrender because that although the Patents are surrendred the estate remained the Book of 32. E. 3. Monstrance of faith 178. proveth nothing for there it is said that a man may plead that a Dean and Chapter did not lease modo et forma without shewing any Deed for there this pleading is not to devest any thing out of c. and also it appears in the principal case that his intent was to surrender for the Iury do finde that the Letters Patents were restored by the command of the Lord Seymor to be cancelled and to that which hath been objected if the second Patent should be good that the Queen might lose her Rent or condition because the first lease hath his continuance to that I give answer that the first lease hath not his continuance and therefore no loss can grow to the Queen and to that which hath been objected that the Queen is deceived it appears by these words modo habens c. restituit c. that the intention of the Queen was that the Lord Seymor had surrendred his estate before and that he now had nothing because that the word modo being joyned with the word reddidit signifieth the time past but as to that it seems to me that although modo poetica licentia in the strict construction of Grammer may signifie the time past yet the signification thereof shall not be so taken in the letters Patents for there it shall be taken in common construction and not to the deceipt of the King and therefore in the Dean and Chapter of Bristols case 7. E. 6. Dyer the words are nuper in Tenura I. S. et modo in Tenura A. B. there nuper is taken for the time past but modo for the present time and in 11. H. 7. Rogerum Townesend modo militem is to be intended that he is now Knight and not that he was a Knight in time past and not now also it is so to be observed here that these words habens et gaudens are annexed to this word modo both which are in the present time and restituit comes afterwards and so modo is not annexed to restituit but unto habens et gaudens also although the word shall be referred unto restituit yet all may well stand together for restituit may be referred unto the time present as siquae fuerint in 35. H. 6.11 and to that which hath been objected that until the Queen agrees unto the surrender the estate is not in the Queen he thought that where Tenant for life surrenders before agreement he in the reversion is Tenant to the Praecipe although he shall not maintain a Trespass before entrie for by 21. H. 7.12 it appeareth that an estate for life may be determined aswel by word as by surrender so in 9. H. 7. where the Tenant dies without heir the freehold is immediately in the Lord but yet he shall not have an action of Trespas before entrie now as to the first point he conceived it to be an actual surrender although there be no Vacat made nor any Memorandum and to examine it he did relate what Acts might make a surrender and to that purpose he said that words being used which do prove an assent of the Tenant that he in reversion shall have an estate that shall be a surrender without express words of a surrender for a man may surrender by these words Remisit or resignavit for the words are not material if so there be substance as in 40. E. 3. placito 14. and 40. Assises pl. 16. if a lessee for life saith to his lessor that you shall enter and I will that you shall have this land this is a good surrender So in 28. H. 8. Dyer 33. if a Termor agree that he in the reversion shall make a feofment that is a surrender so in 8. Eliz. Dyer 251 252. lessee for life is content that he in the reversion shall have the land and his interest that is a surrender but in that case it appeared that a rent was reserved and an agreement that the lessee should have it againe if he survived the lessor and therefore appearing plainly that it was not intended to pass by way of surrender it was at the last adjudged no surrender so in 14. H. 8. the Grantee of a Rent did surrender the Deed and that held to be a good surrender of the Rent it is daubted in 2. Eliz. Dyer in Sir Maurice Barkleys case 156. if the surrender of the Patent of an Office unto a master of the Chancerie out of the Court be good without beliverie of the Patent to be cancelled but that Book proveth nothing but that a delivery of a Patent to be cancelled shall be a good surrender though the Patent be not cancelled in facto it hath been objected that it matters not what commandment the Lord Seymor did give nor in what Court the Patents were given up nor before whom but to that he said in asmuch as it is found that the Patents were given up by the commandment of the Loâ—d Seymor to be cancelled that being it was by his command it was his own surrender also it appears that the letters Patents were under the great Seal of England which alwayes issueth out of the Chancery and therefore it cannot be cancelled in any other Court and it shall be intended that they were given up to be cancelled there also this word restituit signifieth to restore and a man cannot restore any thing but where he had it and he had it out of the Chancery and therefore it shall not be otherwise intended but to be there restored so in Baggots Assise 9. E. 4.7 it is pleaded Quod restituit litteras Patentes Cancellandas and sheweth not to whom nor where and it was held to be very good but it is there pleaded Quod sursum reddidit Patentes Domini Regis and shewed in special to whom they were surrendred because it may be to any that hath power at the time of the surrender but a man cannot restore unto any but such a one who granted unto him and therefore needs not shew unto whom he did restore
and these words restituit Cancellandas are no new words but usually used in surrenders of Patents as it appears by 9. E. 4.7 and in Altonwoods case Cook lib. 1. and there the not entring of a Vacat doth not hurt for it was the fault of the Clark and Sir Maurice Barkleys case in 2. Eliz. 176. cited before doth not question it that the entring of a Vacat should be material but the question here is because he did not deliver them up to be cancelled in the Lord Darcies case Dyer 195. the jury did think that there was no surrender at all but the Book-doth not marrant but that there may be a surrender without a Vacat and he said that at this time the matter is depending for Saint Saviours in Southwark if it be a good surrender without a Vacat entred and no opinion as yet given in that case and where it hath been objected that there is no actual surrender until that the Queen hath agreed and 8. and 21. H. 7. cited that where a man pleads a surrender he must also plead an agreement yet because the agreement cannot appear by any Record that the partie can procure to be made of it it shall be good although there be no record made of that agreement yet in this case the Queen doth agree as appears by the words in the second Patent Quam quidem sursum redditionem acceptamus c. Secondly admitting there is no actual surrender in this case yet if when the Queen did recite the particular estate and that she had accepted the surrender thereof and in consideration of it she maketh a grant whether this second Patent shall be good and it seemeth that it shall and therefore it appeareth by 37. H. 6.18 that the taking of a second lease shall be a surrender of the former and in Corbets case 11. Eliz. Dyer 208. 4. Mar. Dyer 140. although the first lease be by deed indented and the second but by word and in Ives case Cook lib. 5.11 acceptance of a future lease is a surrender of a lease in possession and to that purpose is 21. H. 7.14 H. 8.15.31 Assises placito 26. and other Books and in 3. Eliz. Dyer 200. the King granted a house for years and after did grant to the Patentee the custody of the house with a fee and the Patentee accepted the fee and it is there doubtted it that shall be a surrender of the Term and the matter was Compounded but he said that he heard that the opinion of the Iudges was that the acceptance of the custodie and fee was a surrender of the Term by that I do infer that there shall be a surrender by implication aswell where the King is partie as where a common person only first if a surrender be effectual it is sufficient although it be not formal because it worketh as much profit to the King and the surrender in this case was at the same instant that the Queen did Seal the letters Patents for the estate passeth from the Queen without delivery and it appears that the intention of the Queen was not to have any actual possession of that by these words modo habens et gaudens but it hath been objected in as much as this surrender was at an instant that it should be void because that in instants the best shall be taken for the King yet it seemeth to me that it is good as in the case of 49. E. 3.5 a. a man deviseth Burgage land holden of the King and dieth without heir this devise is not good against the King because the devise taketh not effect until the instant of the devisors death and at that instant also doth the title of the King begin by death without heir and he cited Plowden 108 109. in Fusmerstons case for the exposition of these words not now in being within the Statute of Monasteries and if in that case issue had been taken whether it had been a surrender or not it should have been found to be a surrender because it is a surrender in the law as it was in Thetfores case in the Common Pleas p. 28. Eliz. Rot. 122. in wast Baron and Feme Donees in tail make a lease for life the husband dieth and the wife disagreeth to the lease and the issue was if the husband and wife did lease and it was found that they did not lease because now by her disagreement it is become in law not the lease of the wife Cook lib. 3. Butler and Bakers case accordingly fo 27. 28. but if the King be to sustain any loss by the consideration if that were false then shall it make the Patent void as it is in 9. H. 6. where the King was deceived in the value so 18. Eliz. Dyer 352. where there was a loss in esse but it is contrary where there grows no loss to the King as 26. 28. H. 8. of a thing passed because the King is not to have benefit of it the Lord Chandos case is not answered on the other side for there the King did intend to have the actual possession where in facto he had not yet because that was only a recital and Collection in the matter in law it doth no hurt so in the principal case and so if the King grant a Mannor although he hath but a reversion of it yet it shall pass without the word reversion 7. Eliz. Dyer 233. and the Kings Patent also shall be so construed that one part may stand with another viz. that the Lord Seymor now having the estate c. doth restore unto us c. the which we do accept c. as in Sir John Molins case 40. Eliz. Cook 6. Lord measne and Tenant the Tenant was attainted of Treason and the King did grant the laud tenendum de nobis c. suis noftris et aliis cap. dominis feodi illius per servitia inde debita et de jure consueta He shall in that case hold of the mesne as the Tenant held before for if he should hold of the King the words subsequent would be void and for that cause such a construction shall be made that all may stand together now for the third point admit that the surrender is not good yet it is aided by the Statute of 43. Eliz. cap. 1. which aides all grants and surrenders c. to or from the Queen the clauses for conveyances to the Queen are with restraint but for the conveyances of the Queen there are certain exceptions our case is within that part of the Statute which relates unto the 25th year of her Raign and our case is within the words of the Statute viz. surrenders and surrenders within the Statute are such as are surrenders to a common intent and therefore where the partie hath done that in him lieth but some thing is to the perfection of a surrender that is aided by the Statute also by this word assurance in the Statute a purchase
an actual surrender before made for the consideration but whereas it hath been objected of the other part that the word modo doth often signifie the time past and some instances according to Grammatical construction were given in proof thereof and thereupon they would infer that the Queen by these words modo habens did intend no other but lately having or injoying to that he gave a double answer to the first he said that there was no cause shewed or instance given That modo habens joyned together will signifie a time past though taken â—everally that may signifie so much which makes a plain difference betwixt those instances and this present case Secondly admitting in a Grammatical construction they did signifie as the other side would have it yet the judges ought to adjudge thereof according to the most natural sence of these words in Common understanding and that so it may be done he vouched one Talbots Case in 32 Eliz. in Banco Regis in which after the Iudges had conferred in the Court with divers learned Schollers touching the Grammatical construction of a word used in a Convey ance they afterwards notwithstanding did wave the Grammatical construction and adjudged the word to signifie in Law according to the Common received sense of the word and according to this he vouched 12. H. 8. where the word uterque received the like construction also he vouched the 20. Eliz. Dyer fol. 262. where it is admitted that the word modo is to be taken in the present Tense and to this purpose he also vouched Billings Case in 38. H. 6. and Bozuns Case Coo. lib. 4. and then he concluded that in asmuch as the special verdict had definitively found no consideration but generally for the consideration above exprest he held that the second Patent was good for a Patent cannot be void because there is no consideration to move the King to grant but a Patent may be void as is pretended for a false consideration which is not in this case and therefore c. Fourthly admitting that the consideration in this Case was for an actual surrender before made and that in this case no such actual surrender was before made yet he held that in this Case the second lease is good notwithstanding the false consideration for it appears by 37. H. 8. Brook title patents 100. that a Patent shall never be void for a false consideration but by reason of a false surmise it may but he confessed this difference was generally denied because a Patent shall be void by reason of a false consideration but he said that the differences were infinite also upon this ground for some take a difference where a consideration is real and where it is personal and they hold that a real consideration being false shall not avoid the grant but otherwise of a personal and so they take the Book of 37. H. 8. before cited to be good Law and upon this difference others also have taken a difference where the consideration is to come to the King himself and where it is to come to a stranger others also have taken a difference where the consideration is of a thing valuable and where it is not of value yet they take a difference where that is past and executed and where it is to come or Executorie but he said that although divers of these differences seemed to be good with great reasons and were backed with some Authorities yet he needed not to take advantage of any of them for the maintenance of this Case and for that he took this general difference for the maintenance of this Patent viz. that if the consideration be such which brings a benefit or commonditie to the King and this is false that this avoyds the grant but if it bring no commoditie to the King although it be false yet the grant is good and to prove this diversitie he cited Harris and Wings Case to be adjudged in Banco Regis and Barwicks Case Cook lib. 5. and Sir Hugh Cholmleys Case Cook lib. 2. to be adjudged accordingly of a false recital and he said although it be admitted that the consideration which the King intended to have was an actual surrender yet in asmuch as this cannot be intended a thing more to his advantage then a surrender in Law the which plainly appears to be in this case that the Patent is good and for that he held that the second lease shall not be avoided for such a falsitie and also he said that this Case is more strong of his side then any Case which may be cited in asmuch as the King had no discommoditie or loss by the falsitie of the consideration but in this Case also he should be at a loss if the second lease were not good for the second lease reserveth a greater rent to the King then was reserved by the first and therefore it is for his benefit that the Law should allow of the second lease to the intent it may make a surrender of the former lease for the Kings advantage and if the King granteth probis hominibus de O. rendring rent they are by this grant impliedly made a corporation for the benefit of the King to render him the rent whereas otherwise the grant would be void and so he took it in the principal case although the grant should be void by reason of the false consideration yet it should be good to this purpose for the Kings benefit and after Termino Mich. Anno Sexto Jacobi Regis this Case was argued again and Nicholas Serjeant for the Defendant said that the sole point of the Case is if the consideration of the lease made in 27. Eliz. be good or not and this is exprest to be Tam in consideratione sursum reddditionis praedict quam pro aliis Causiis et Considerationibus c. then it is to be considered if here be such a surrender as is meant to be within the intent of the Consideration of the Queen and he said that in this Case here was a good surrender in law clearly by the Book of 37. H. 6. for in all Cases where a Teimer for years accepts a lease of him in Reversion as here the Lord Seymor did then this is a surrender in Law of his first interest but the Earl of Salisbury Lord Treasurer said that this is not properly a surrender of this Antient Term but an extinguishment thereof to which the Lord chief Baron Tanfield agreed and Serjeant Nichols further said that the Consideration which moved the Queen to her grant was only the sufficient surrendring of the precedent estate of the Lord Seymor and not the restoring of the letters Patents and therefore although it be admitted that here was not a sufficient restoring of the letters Patents nor an actual surrender by this means yet here is an effectual surrender by the operation of Law and then this being the sole Consideration which moved the Queen to her grant the not sufficient restoring of
the letters Patents is not material for he said it seemed to him that in rei veritate the particular estate cannot be sufficiently surrendred by this bare giving up of the letters Patents by the Tenant for life as it appears by Walshes Case cited in Altonwoods Case Cook lib. 1. and therefore he insisted not upon that Secondly he argued that a recital in the Kings Patents of a thing material if it be false and come by information of the partie is all one as a false Consideration and not otherwise and he said that it appears by Brook tit Patents pla 100. that all Considerations valuable although they are false do not avoid a Patent as where the King grants lands prodecem libris sibi solutis although that in facto this is false yet the grant is good also it appears by 26. H. 8. and Sir Thomas Wrothes Case and by 21. E. 4 fol. 48. that a consideration executed avoideth not a grant although it be false but he said that it appears by the Case of 18. Eliz. Dyer 352. that if the King make a lease in Consideration of a surrender of a precedent lease which in truth was void by some that the King may avoid the lease but others contrary because it was not done upon the suggestion of the partie but for a consideration executed and the surrender of the estate precedent was the material cause and consideration of the grant and he said that although in this Case there be not a good surrender of the letters Patents yet the Consideration being only the surrendring of the estate that is not material for as it is said in Altonwoods Case Cook lib. 1. if the King in Consideration only of the surrender of precedent Patents makes a grant in this Case there needs no averment of an estate for the surrender is not material of the letters Patents Also it appears Cholmleys Case Cook lib. 2. that if the King recite an estate to be made with Condition although that at the same time of the recital this is not Conditional yet if once this were Conditional the King is not deceived although the condition be now released and he cited also the Lord Chandos Case Cook lib. 6. where it appears that if the King recite a thing untruly which cometh not of the information of the partie this shall not hurt the Grant except it be part of the consideration and he said that Harris and Wings Case differs from this Case for there the King had a Tenant who held a Tenement by the yearly rent of six pounds and another Tenement of him by the yearly rent of nineteen pounds and he made a new lease of both those to the said Tenant without any recital of the former leases reserving but Nineteen pounds for both and there it was adjudged that the second lease was not good but he said that the reason of that judgement was not because the antient lease was not recited but by reason that a loss in the rent came to the King and so by intendment he was deceived and this was also upon the matter the reason of the resolution of Barwicks Case and also in Mack-Williams Case for there was not a surrender of the estate as the King intended which ought to be but in our Case the estate is well surrendred clearly and he thought that these words modo habens may well stand with the Kings intent aswel to a surrender in Law as to an actual surrender The Attorney generall to the contrary First for the recital that the information of the partie was that the King should have an actual surrender and so was the Kings intent collected upon the information of the partie Secondly that here is not any actual surrender Thirdly that by consequence it followeth that the Queen is deceived Fourthly here is no surrender in Law in this Case Fifthly although here were a surrender in Law yet that is not sufficient to make the grant good to the first point be said that alwayes a familiar construction ought to be made of the Kings grants and therefore if the King grant all his portion of Tithes in D. this doth not pass his Parsonage in D. although he had no other Tithes there so if the King grant all his Titheable lands within the Mannor of B. although the lands of Coppiholders are parcel of the demeasnes of the Mannor of B. yet these lands in such Case do not pass Cook lib. 1. Bozuns Case and Cook lib. 1. Altonwoods Case fo 46. aâ—so it appears by the pleading in Plowden in Wrothesleys case and in Adams case and also in Fulmerstons case that although the antient particular estate be gone in Law by the acceptance of a new estate yet it ought not to be pleaded as a surrender and therefore it shall not be construed that the King intended such a surrender which pleaders in their pleading do not accompt a surrender also he said that in regard that the Queen saith quam quidem sursum redditionem acceptamus it seems by that that she did not intend a surrender in Law and therefore accepted nothing but gave an estate c. and must be meant such a surrender to which she is partie by her acceptance also where the words are modo habens et gaudens and therefore it is inferred that the Queen intended an estate containing in the Patentee this is true for although that the Queen intended an actual surrender precedent to be made by the Patentee yet his estate continues against the Queen untill an acceptance of a surrender by her although also this may be called a surrender like unto a surrender of a benefice untill an acceptance by the ordinary also although it was found that the Queen made a new lease or letters Patents of the said Land to the said Lord Seymor yet it appears not that the new letters Patents were accepted by the Lord Seymor until a moneth after the making of them when he made a lease to Johnson and until that time without question there was no surrender either in fact or in Law and where it hath been objected that these words modo habens implie only the present time he said that the word modo will alwayes signifie such a time as the Verb with which it is joyned will signifie and therefore Cicero saith modo hoc malum in hanc Rempublicam invasit also the words Jam et nunc are of such signification as this word modo is and these words are alwayes governed by the Verb as Jam venit c. so in the Bible the story of Naaman and Gehesey Jam modo venerunt duo behold two young men are come to me c. and as to the second point it is clear that here is not any actual surrender for the King cannot take by an actual surrender without matter of Record And therefore it was holden in the Lord Stanleys Case that the King took nothing although his officers by his command did
and therefore he vouched a case between Scockwood and Sear where a man devised part of his land to his wife for life and another part of his land until Michaelmas next ensuing his death and further by the said will he devised to his younger son all his lands not devised to his wife and adjudged that by the said words the younger son shall have only that parcel which was devised to the wife for life and not that which was devised unto her till Michaelmas and yet by Popham it appeareth that his intent was otherwise viz. that all that should go to his younger son so there ought not to be a strained construction made against the heir and so in our case the words being that if he die without issue c. that then it shall go to his wife herein as much as he had issue at the time of his death it cannot be said that he died without issue but that he is dead without issue and this appeareth by the pleading in the Lord Bartleys case in Plowden and he vouched also a case in the Kings Bench 4. Jac. between Miller and Robinson where a man devised to Thomas his son and if he die without issue having no son there it was holden that if the devisee had issue a son yet if he had none at the time of his death the devisee in the remainder shall have it yet he was once a person having a son and so in our case there was a person who did not die without issue and he vouched also the case of Bold and Mollineux in 28. H. 8. Dyer fo 15.3 when a man deviseth to his wife for life paying a yearly rent to his sister and that if the rent be not paid that the sister may distrain it seems to me that this is a conditional estate in the wife notwithstanding the limitation of the distress and he vouched 18. Eliz. in Dyer 348. which as he said proved the case expresly for there in such a case it is adjudged that the devisee of the rent may after demand thereof distrain and yet the heir may enter for the not payment of the rent although it were never demanded so that the subsequent words of distraining do not qualifie the force of the condition although there be there an express condition and in our case but a condition implyed and he said that it seemed reasonable that such a construction for the distress and condition also shall stand as appeareth by divers cases that upon such words the Law will allow a double remedy and therefore he vouched Gravenors case in the Common Pleas Hill 36. Eliz. Rot. 1322. where a lease was made by Magdalen Colledge to husband and wife so that if the husband alien that the lease shall be void and provided that they do not make any under-tenants and to this purpose he vouched the case of the Earl of Pembrook cited in the Lord Cromwels case Cook lib. 2. where the words amounted to a covenant and a coudition and if this word paying should not be construed to be a condition then it were altogether void and idle and such a construction ought not to be made in a will and he conceived that this rent ought to be paid by the wife without any demand upon the pain of the condition and therefore he vouched 22. H. 6. fo 57.14 E. 4 21. E. 4. by Hussey and 18. Eliz. Dyer 348. vouched before and so it was resolved as he said in the Court of Wards in Somings case where a man made a devise paying a rent to a stranger this ought to be paid without demand and he said that the Common case is proved when a feofment is made upon condition that the feoffee shall do an act to a stranger this ought to be done in convenient time without request by the stranger and so here it seemeth although a demand ought to be made by the sister yet the wife ought to give notice to the sister of the Legacy so that she may make a demand and therefore he vouched Warder and Downings case where a man devised that his eldest son upon entry should pay to the younger son such a summe of money here the eldes brother ought to give notice at what time he will enter to the intent that the younger brother may be provided to make a demand Edwards of the Inner Temple contrary First it seemeth that by this limitation the wife ought to retain the land until the issue of the devisor should have come to the age of 18. years for this a time certain and as it is construed upon such words in Borastons case Cook lib. 3. that the Executors there have an interest certain so it should be construed here to refer to a certainty which is until the time by computation that the issue should have attained to 18. years and the rather in this case in respect the devisor had otherwise disposed of the land until the son should have accomplished the said age Secondly it seemeth that the wife hath an estate for life not conditional in so much as the words are not joyned in the case the 18. Eliz. Dyer hath been vouched but that was upon an express condition but here it is by implication and then the clause of distress taketh away the force of the implication which otherwise might be thereupon inferred and therefore in 5. Eliz. Dyer it appeareth that the word Proviso annexed to other words makes it no condition in judgement of Law and so in 14. Eliz. Dyer 311. and he vouched also 18. Eliz. Dyer Greens case that if a man deviseth lands to his friends paying to his wife with a clause of distress this is no condition as it is adjudged Thirdly it seemeth that this summe to be paid to the sister is a rent and therefore ought to be demanded or otherwise in judgement of Law the condition shall not be broken and the 21. E. 4. the case of an obligation to perform covenants c. and a case between Wentworth and Wentworth 37. Eliz. that a demand ought to be made for a rent which is granted in liew of Dower for the wife brought a writ of Dower for the land of her husband the Tenant pleaded that she accepted a rent out of the land in liew of her Dower and the wife replied that the said rent was granted upon condition that if it were not paid at certain dayes that it should be void and that she should have Dower of the land and she said that the rent was not paid at the dayes c. but shewed not in her pleading any demand to be made and therefore it was holden evil pleading for such a rent ought to be demanded or otherwise the condition is not broken and so here Nota that this case was appointed to be argued again but after as I heard the Barons amongst themselves resolved to give judgement for the Defendant upon one point only which was that the estate
the Mannor of Caversfield rendring rent and that this rent was arrear and thereupon an Inquisition returned and a scire facias issued to Moil who occupied the land to shew cause wherefore the King should not have this land whereupon he pleaded as Ter-tenant and upon this plea the Kings Attorney demurred but it was misentred as see hereafter but for divers great imperfections aswell in the Kings Commission as otherwise the Defendant ought to have judgement as all the Barons agreed as by the arguments of every Baron upon mature deltheration appeareth but for the reasons of the Barons to the exceptions taken by the Councel see after for they are very good Bromley Puisue Baron whereas the Inquisition purporteth that the Iurors in the County of Bucks have found a foundation of a Priory in the County of Oxon. that is not good by course of Law for if a thing be local the Iurors of another County cannot finde it and here the Commission giveth power only to inquire of things in the County of Bucks and he vouched Plowden in the Earl of Leicesters case upon a Commission directed to White Lord and Maior c. also the Inquisition is that Thomas Banbury Nuper Prior was seised and made a conveyance as is affirmed that is not good also the word Nuper may be intended a 100. years before and so no certainty as appears in Wrothesly and Adams case in Plowden Altham 2d Baron there are three faults in the Commission First is to inquire of a Mannor and lands of the late Priory of Bister in Caversfield in the County of Bucks and by these words no power is given to inquire of any thing concerning the Priory which is in the County of Oxon. and the words in the County of Bucks do defer to all the sentence precedent and not to the word Caversfield only 19 E. 4. fo 16 7. H. 6. fo 8. if A. B. and C. be insula de D. it shall be construed that the word insula hath reference to all the three Towas but if it were in A. B. and C. insula and not in insula then it is otherwise a Commission to inquire of lands of the Prior of Bister is evil without question where Bister is and he said that this may be proved by Pages case Cook lib. 5. also the Commission doth not propose any end wherefore the Iury should be but generally to inquire of the lands of the Priory at the time of the dissolution so that it may be certified to the King by the Inquisition the first fault which is found is that the Priory was founded by the name of the Church of Saint Mary and Saint Egbert without saying the Prior and Covent of c. and without finding of the place of the foundation viz. Bister and this cannot be without assignmend of the place of the foundation viz. Bister also the finding is that one Thomas Banbury then Prior as is affirmed made a feofment c. and this is not good because it ought to be absolutely found or otherwise it is not material also the intent of the feofment is found to be made by the Prior but no livery is found thereupon as it ought although that livery shall be intended in the case of a feofment pleaded by a common person yet it ought to be found expresly in the case of a Corporation and the finding here and that by vertue whereof he was seised as the Law requireth doth not aide the case Snig Baron it seems to me that this Commission was only to inform if the matter had been sufficient to us to give judgement to the King but here being to intitle c. it is not good the Commission is to inquire for the King of the lands of the Prior and this meerly incertain without saying certainly of what Prior and therefore they have no power to inquire of the lands of the Priory also the Iury of the County of Bucks cannot inquire of the name of the foundation of a Corporation in the County of Oxon. for the foundation is matter Local but it seems to me here that the finding by vertue whereof he was seised prout c. shall be intended that livery was made being by a verdict Tanfield chief Baron here is not any demurrer being mis-entred and therefore we have power to proceed to any matter in Law for the purpose in this case was that whereas the Statute of the 27. H. 8. of lesser Monasteries under the yearly value of 200. l. giveth them to the King and this Mannor of Caversfield within this Statute is to be seised as is pretended in this case whereupon this Commission issued to inform the King of this Mannor as parcel of these Revenues for I deny that it is an office of intitling it is only an office of instruction for the Statute of 27. H. 8. dissolves the smaller Monasteries and vests them actually in the King and this is the difference from the Statute of the 31. H. 8. for this Statute is only an Act to Abolish the lands of dissolved Monasteries and therefore this Statute is only to inform for the Statute of 27. H. 8. had intitled the King and he said that the land shall be in the King without office so that it being but an office of instruction this may be good notwithstanding divers incertainties therein contained but the plain and apparant fault herein is because it is not to inquire what lands the Prior had at the time of the dissolution as it ought to be for the words are to inquire what lands the late Prior had but it seems to me in this case that the Iurors of the County of Bucks may inquire of the foundation in another County without doubt this being but to inform and not to intitle and this is not alike mischief to the party for otherwise all Commissions to inform would be quashed and I have seen a Record in this Court where a man of a good family was found to be the Kings Villain regardant to a Mannor in Norfolk and this was done by a Iury in Suffolk and therefore in such cases God defend but that a Iury may finde a matter local in another County also a gross defect is in the Inquisition viz. because it doth not mention that the Mannor of Caversfield came to the King by the Statute of the 27. H. 8. but that the Priory came to the King by that Statute and doth not say that this Mannor was part of the possessions of the Priory at the time of dissolution and for these last matters it is apparent that the Inquisition and Commission are vitious although it be not proper for us as the case is to adjudge it for here is no demurrer joyned for the demurrer is joyned as if it were upon an Information of intrusion and here is no intrusion laid to the charge of the Defendant and yet after the plea pleaded by Moil the Attorney prayed that he may be
was in a Formedon in remainder and it was moved now by Serjeant Harris if the partie against whom it was given may sue in the Exchequer Chamber by Bill or petition to the King in the nature of a writ of false judgement for the Reversal of that judgement Tanfield seemed that it is proper so to do for by 13. Rich. 2. if a false judgement be given in a base Court the partie grieved ought first to sue to the Lord of the Mannor by petition to reverse this judgement and here the King being Lord of the Mannor it is very proper to sue here in the Exchequer Chamber by petition for in regard that it concerneth the Kings Mannor the suit ought not to be in the Chancery as in case a Common person were Lord and for that very cause it was dismissed out of the Chancery as Serjeant Harris said and Tanfield said that he was of Councel in Pettishals case in the time of the Lord Bromley where it was debated at large if such a judgement ought to be reversed by petition in the Chancery in case where a Common person was Lord and at last it was decreed that it should be as in that case of Patshal and for the same reason here the King being Lord and therefore day was given till the next Term to shew their errours and Serjeant Harris said that the errors are in effect no others then were in the case 9. Eliz. Dyer fo 262. and in Godmanchesters case and it was adjourned Scot and his wife against Hilliar SCot and his wife Plantiffs against Hilliar for these words spoken of the wife viz. she would have cut her husbands throat and did attempt to do it Hutton Serjeant in arrest of judgement said that these words are not actionable for the will or attempt is not punishable by our Lawe and he vouched Cockains case Cook lib. 4. cited in Eaten and Allens case but by the Court an Action lies for the attempt is a cause for which the husband may be divorced if it were true and it is a very great slander and Baron Snig said that in the same Term a judgement was given in the Kings Bench and was affirmed in the Exchequer Chamber upon a writ of error for these words He lay in the high way to rob me and therefore let judgement be entred for the Plan̄tiffe but it was adjudged in the principal case that for the words she would have cut her husbands throat no Action would lie Gooches Case A Coppyholder surrenders into the hands of the Customary Tenants to the use of Anne his Wife and after before any Court the said Coppyholder surrenders the Land into the hands of other Customary Tenants to the use of the said Anne for her life the remainder to Percie in Fee upon condition that he in remainder his Heirs should pay 20. s. per annum at Michaelmas for ever the first payment to commence immediacely after the death of the said Anne viz. at the next feast of St. Michael and this to be paid in the Church Porch or D. to the Church Wardens of D. in the presence of four discreet Parishioners or otherwise that a stranger should re-enter and at the next Court both these surrenders were present and the Steward admitted the said A. according to the second surrender and she dyed and now upon pretence that the rent of 20. s. was not paid by the Heirs of him in remainder the Heir of Gooch who made the surrender had entred and thereupon an Action was brought and upon the evidence the Jury to the County of Bedford now at the Bar These matters were moved by Serjeant Nichols That a surrender into the hands of Customary Tenants cannot be Countermanded and therefore the second surrender void and the admittance shall work to such uses as the first surrender was made as in Anne Westwicks Case Cook Lib. 4. And to prove that a surrender into the hands of Customary Tenants is not countermandable he said that it is not countermandable by death nor surrender Cooke lib. 4. in his Coppyhold Cases That a presentment in the Court may be after the death of the surrenderer and the admittance thereupon is good and he compared it to the Case of the delivery of a Deed as an Escroll which may be delivered as his Deed after the death of the Maker as it is in Jennings and Braggs case Cook lib. 3. which was not denyed by the Court Serjeant Dodderidge said that when a surrender is made upon condition that he shall pay a summe of money to a stranger these words make an estate conditionall and give power implyedly to the Heirs of the party who did surrender to re-enter for non-payment and the words which give power to a stranger to re-enter are meerely void neverthelesse the precedent words shall stand and make the estate conditionall Tanfield Littleton saies that such a re-entry is void for a re-entry cannot be limited to a Stranger Nichols Serjeant said that if a surrender be made that he shall pay so much money that this makes the estate conditionall and gives a re-entry to the Heirs of him who did surrender But when it goes further and doth not leave the condition to be carried by the Law in such case all the words should be void because it cannot be according to the intent as in the case of a reservation of rent the Law will carry it to the Reversion but if it be particularly reserved then it will go according to the reservation or otherwise will be void and so here Tanfield Admit that here was a conditionall estate by vertue of the Surrender last made and this condition is also to be performed to a stranger which generally ought to be taken strictly yet as it is here he who will take advantage thereof ought to prove a voluntary neglect in the party in the not performance of the Condition and inasmuch as there is no certain time appointed when the payment of this Annuall rent should be made but generally at Michaelmas next after the death of the said Anne thereby in this case the Chuch-wardens ought to notifie the death of the said Anne before the first day of payment by reasonable space or otherwise the condition is not broken and also it is appointed here to be paid in the presence of four discreet Parishioners by the party who should perform the condition yet by intendment he hath no notice who are discreet or who are not especially he being an Infant as in our case he is and therefore although the condition is to be performed to a stranger which generally ought to be performed strictly according to 12. E. 3. Yet this is to be intended only in such cases where the party had certain notice of all circumstances requisite for payment thereof and therefore he directed the Iury that for want of knowledge of such circumstances they should give a Verdict that the condition was not broken And Dodderidge
last matter it seems that the Statute of 1. Jac. cap. 4 hath discharged this Land admitting that it was not discharged before wherein the words are and if any Recusant shall hereafter die his Heir being no Recusant That in every such Case every such Heire shall be freed and discharged of all and singular the penalties charges and incumbrances happening upon him or her in respect or by reason of his or her Ancestors recusancy and as to Walter de Chirtons Case who being an Accomptant to the Ring purchased Lands of A. with the Kings money by Covin and took the profits neverthelesse upon Inquisition it was adjudged that they should be seised into the Kings hands for his debt I agree that to be good Law because A. when he received the said money of Walter de Chirton that being the Kings monie A. immediately thereby became a Debtor and an Accemptent to the King and then into whose hands soever these Lands do after come they are still chargable for that money and therefore c. Sawyer against East AN Ejectione firme was brought by Sawyer against East for certain Mills in East-Smithfield in the County of Middlesex the Case upon a speciall Verdict was this Queen Eliz. 28. of her raign demised two Mills one Messuage and one Curtilage to Potter for 40. years Potter makes Mary his Wife Executrix and dies Mary marries one Burhill who in 33. Eliz. did demise one Messuage and one Curtilage to Wilkenson for 20. years and dies and Mary intermarries one Hitchmore who by deed inrolled in Chancery 20. Marcii 44. Eliz. reciting the originall Lease and that he had the whole Right State and Interest and term of years which Potter had and that he surrendred the estate and term of years aforesaid to the Queen reciting the matter mentioned in the surrender and that the Interest and Term which Potter had is come to Hitchmore and that Hitchmore had surrendred the whole right aswell for 30. l. as for that that Hitchmore did assume at his proper charges to repaire and new build the said Mills being in great decay and to give security for the same did demise the Mills Messuage and Curtilage for 40 years to the said Hitchmore rendring rent with a Covenant to be void for not payment c. and after the King demised the premisses to Ferrers and Philips two contractors who enter and demise to Sawyer who was possessed untill ejected by East who claimed under the lease to Hitchmore and the Iury found that in the Letters Patents to Hitchmore were contained ordinary Covenants to repaire the Mills and to leave them in good repair and the Iury also found that Hitchmore had not given any security for the building and repairing of the Mills and that the Mills were not new built nor repaired and that Hitchmore had pulled down one of the Mills and that the Term of twenty years is yet in being and if upon the whole matter c. Bromley the Puisne Baron saies that it seemed to him that judgement ought to be given for the Plaintiff First the suggestion or surmise in the Patent being false in matter of value and in such a thing which is proper for the information of the Lessee causeth the Lease to be void as in 18. Eliz. Dyer 352. An Abbot makes a Lease for 60. years the Lessee demiseth to I. S. for 80. years the reversion comes to the Queen the 60. years expire the second Lessee surrenders to the Queen his Term and Interest which was nothing in substance to the intention that the Queen should re-grant to him for 20. years this falsitie avoids the Lease and yet it is no such Lease which of necessity ought to be recited and so is 8. H. 7. fo 3. by Vavisor if the King at the suit of I. S. grants the Mannor of D. of the value of 50. marks and this is of the value of 100. marks and this upon the information of the party in this case the grant is void and so is 8. H. 6.28 by Juine if the King be informed by petition that such Land is but of the value of 8. l. a year which in truth is of greater value the patent is void 11. Ed. 4.1 The Patentee suggests that a surrender was made whereas in deed there was no Surrender at all there also the Patent is void and so is 3. H. 7. the Prior of Norwich his case but there it is expressed in the Patent that the party had informed the Queen of a thing which is false and this is not expressed in our case yet it seems to me that there is no diversitie between that case and the case in question for it is plaine that in our case that the surrender and consideration are the information of the party which was the motive to induce the Queen to her grant for the suggestion is grounded upon the surrender the which surrender is fraudulent and deceptive and therefore the Patent is void Altonwoods case Cooke Lib. 1.40 The King grants the Mannor of Riton and Condor where in truth they were two Manners there neither of them passe Fitzh Grants 58. and so here the suggestion is grounded upon the words of the Surrender which are false and deceptive and therefore the Patent is void also it seems that when the Queen grants in consideration that the Grancee did assume to repair and it is found that he had not repaired this not performing of the consideration avoids the Patent and this is proved by Barwicks case Cook lib. 5. if the King will make a Patent for a consideration which is for the Kings benefit be it Executory or executed of Record or not if it be not true or duly performed the Patent is thereby void And here the Covenant or assumption not being performed according to the Queens intention and the consideration of the Grant will also make void the Patent And it may be construed as a Proviso in an Indenture within some Cases doth amount to a Covenant and condition also as it was in the case of Simpson and Titterell and also in the case of the Earl of Pembrook vouched in Cook lib. 2. in the Lord Cromwels case and therefore I conceive that the words super se Assumpsit aedificare is parcell of the consideration aswell as if it had been pro eo quod aedificabit and so avoids the Patent by the not performance thereof Altham Second Baron saies it seems to me that the Iudgement ought to be given for the Planthere are three things considerable in the Case First whether the Lease made to Hitchmore were ever good or not in respect of a false suggestion Secondly whether in that the consideration that he did assume upon himself to repair and the Queen indeed never had any precedent information made of the want thereof do avoid the Patent in the foundation Thirdly admit it be good in the foundation whether the Lease become void afterwards for not repasting And first I